Citation Nr: 1021807
Decision Date: 06/14/10 Archive Date: 06/24/10
DOCKET NO. 06-23 618 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUES
1. Entitlement to an initial compensable rating for
hemorrhoids.
2. Entitlement to an increased initial rating for right foot
plantar fasciitis with right heel spur, currently rated 10
percent disabling.
3. Entitlement to a compensable rating for erectile
dysfunction, to include penile deformity.
4. Entitlement to a compensable rating for sinusitis.
5. Entitlement to a compensable rating for bilateral hearing
loss.
6. Entitlement to an increased rating for otitis
media/externa with bilateral eustachian tube dysfunction and
tympanosclerosis, currently rated 10 percent disabling.
7. Entitlement to service connection for posttraumatic
stress disorder (PTSD).
8. Entitlement to service connection for chronic liver
disease.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
M.W. Kreindler, Counsel
INTRODUCTION
The Veteran had active service from February 1985 to February
2005.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions of a Department of
Veterans Affairs (VA) Regional Office (RO).
A March 2005 rating decision granted entitlement to service
connection for hemorrhoids and right heel spur, assigning
separate noncompensable ratings. A notice of disagreement
was filed in April 2005 with regard to the disability ratings
assigned, a statement of the case was issued in June 2006,
and a substantive appeal was received in July 2006. The
Board notes that service connection had also been established
for right foot plantar fasciitis, rated noncompensably
disabling. An October 2005 rating decision assigned a 10
percent disability rating for right foot plantar fasciitis.
In an April 2008 rating decision, the RO combined the
disabilities, and assigned a 10 percent disability rating for
right foot plantar fasciitis with right heel spur.
A December 2006 rating decision denied entitlement to service
connection for liver disease and hepatitis A, denied
increased compensable ratings for bilateral hearing loss,
otitis, impotency, assigned a 10 percent rating to allergic
rhinitis with recurring pharyngitis, and assigned a separate
noncompensable rating to sinusitis. A notice of disagreement
was filed in December 2006 with regard to the denial of
service connection for liver disease and hepatitis A, and the
disability rating assigned to impotency. A notice of
disagreement was filed in January 2006 with regard to the
disability ratings assigned to sinusitis, bilateral hearing
loss, and otitis. A statement of the case was issued in July
2007 and a substantive appeal was received in August 2007.
In April 2008, the RO assigned a 10 percent disability rating
to otitis media/externa with bilateral eustachian tube
dysfunction and tympanosclerosis, effective November 29,
2007. Although an increased rating has been granted, the
issue remains in appellate status, as the maximum schedular
rating has not been assigned and such rating has not been
assigned during the entire appeal period. AB v. Brown, 6
Vet. App. 35 (1993).
A March 2007 rating decision denied entitlement to service
connection for PTSD. A notice of disagreement was filed in
April 2007, a statement of the case was issued in October
2007, and a substantive appeal was received in December 2007.
In November 2009, the Veteran submitted new evidence in
support of his right heel spur and chronic liver disease, and
he has waived RO review of such additional evidence. See 38
C.F.R. §§ 19.9, 19.31(b)(1) (2009).
In November 2009, the Veteran submitted medical evidence
pertaining to his service-connected cervical spine, left foot
disability, right knee disability, and pertaining to a GI
endoscopy and CT of abdomen. This is referred to the RO for
appropriate consideration. In March 2010, the Veteran
submitted evidence pertaining to a cardiac disability, and
appears to be claiming entitlement to service connection for
cardiac disability. This is referred to the RO for
appropriate action. In the March 2010, Informal Hearing
Presentation, the Veteran's representative suggested that his
psychiatric symptoms had worsened and that he cannot work due
to his service-connected psychiatric disability. This is
referred to the RO for appropriate action.
The issue of entitlement to service connection for chronic
liver disability is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC. VA will notify
the Veteran if further action is required.
FINDINGS OF FACT
1. The Veteran has PTSD due to stressors incurred in
service.
2. The Veteran's hemorrhoid disability is not productive of
large or thrombotic hemorrhoids which are irreducible with
excessive redundant tissue.
3. Right foot, plantar fasciitis with heel spur is
manifested by moderate disability.
4. The Veteran's erectile dysfunction is manifested by loss
of erectile power without penile deformity.
5. The Veteran's chronic sinusitis is not manifested by one
or two incapacitating episodes per year of sinusitis
requiring prolonged (lasting four to six weeks) antibiotic
treatment; or three to six non- incapacitating episodes per
year of sinusitis characterized by headaches, pain, and
purulent discharge or crusting, and these criteria are not
nearly approximated.
6. The Veteran has no higher than level III hearing acuity
in the right ear and level III hearing acuity in the left
ear.
7. For the period prior to November 29, 2007, chronic otitis
externa is not manifested by swelling, dry and scaly or
serous discharge, and itching, requiring frequent and
prolonged treatment, nor are there objective findings of a
peripheral vestibular disorder.
8. For the period from November 29, 2007, chronic otitis
externa is manifested by objective findings of a peripheral
vestibular disorder with occasional dizziness.
CONCLUSIONS OF LAW
1. PTSD was incurred in the Veteran's active duty service.
38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R.
§§ 3.303, 3.304 (2009).
2. The criteria for a compensable rating for hemorrhoids
have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107
(West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7336 (2009).
3. The criteria for the assignment of a disability rating in
excess of 10 percent for right foot plantar fasciitis with
heel spur have not been met. 38 U.S.C.A. §§ 1155, 5103,
5103A, 5107 (West 2002); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic
Code 5284 (2009).
4. The criteria for a compensable rating for erectile
dysfunction have not been met. 38 U.S.C.A. § 1155 (West
2002); 38 C.F.R. §§ 4.31, 4.115b, Diagnostic Code 7522
(2009).
5. The criteria for a compensable rating for chronic
sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5103,
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.97, Diagnostic
Code 6512 (2009).
6. The criteria for a compensable rating for bilateral
hearing loss disability have not been met. 38 U.S.C.A.
§§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.321, 4.85, 4.86, Diagnostic Code 6100 (2009).
7. Prior to November 29, 2007, the criteria for a
compensable rating for chronic otitis externa have not been
met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107
(West 2002); 38 C.F.R. §§ 3.321, 4.87, Diagnostic Codes 6204,
6210 (2009).
8. From November 29, 2007, the criteria for a disability
rating in excess of 10 percent for otitis media/externa with
bilateral eustachian tube dysfunction and tympanosclerosis
have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103,
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.87, Diagnostic
Codes 6204, 6210 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Under the Veterans Claims Assistance Act of 2000 (VCAA),
codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and
3.326(a), VA has a duty to notify the claimant of any
information and evidence needed to substantiate and complete
a claim, and of what part of that evidence is to be provided
by the claimant and what part VA will attempt to obtain for
the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002).
The United States Court of Appeals for Veteran Claims'
(Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412
(2004), held, in part, that a VCAA notice, as required by
38 U.S.C.A. § 5103(a), must be provided to a claimant before
the initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits. This decision has since
been replaced by Pelegrini v. Principi, 18 Vet. App. 112
(2004), in which the Court continued to recognize that
typically a VCAA notice, as required by 38 U.S.C.A.
§ 5103(a), must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim for VA benefits. In light of the favorable decision
as it relates to the issue of the grant of service connection
for PTSD, no further discussion of VCAA is necessary at this
point with regard to this issue.
With regard to the hemorrhoid and right heel spur issues, VA
satisfied its duties to the Veteran in a VCAA letter issued
in December 2004 pertaining to his claims of service
connection. The letter predated the March 2005 rating
decision which granted service connection. Since the
hemorrhoid and right heel spur disability appellate issues in
this case (entitlement to assignment of higher initial
ratings) are downstream issues from that of service
connection (for which the December 2004 VCAA letter was duly
sent), another VCAA notice is not required. VAOPGCPREC 8-
2003 (Dec. 22, 2003). Nevertheless, the RO sent another VCAA
letter in June 2006, with regard to the claim for higher
disability ratings. With regard to the remaining increased
rating issues in appellate status, a VCAA letter was issued
in June 2006. Collectively, the VCAA letters notified the
Veteran of what information and evidence is needed to
substantiate his claims, as well as what information and
evidence must be submitted by the claimant, what information
and evidence will be obtained by VA, and the evidence
necessary to support an effective date. Id.; but see VA
O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004). Dingess/Hartman
v. Nicholson, 19 Vet. App. 473 (2006).
The Court in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008),
purported to clarify VA's notice obligations in increased
rating claims. The Court held that a notice letter must
inform the Veteran that, to substantiate a claim, he must
provide, or ask VA to obtain, medical or lay evidence
demonstrating a worsening or increase in severity of the
disability and the effect that worsening has on the
claimant's employment and daily life. The Court also held
that where the claimant is rated under a diagnostic code that
contains criteria necessary for entitlement to a higher
disability rating that would not be satisfied by the claimant
demonstrating a noticeable worsening or increase in severity
of the disability and the effect that worsening has on the
claimant's employment and daily life, the notice letter must
provide at least general notice of that requirement.
The Board points out that the U.S. Court of Appeals for the
Federal Circuit recently reversed the Court's holding in
Vazquez, to the extent the Court imposed a requirement that
VA notify a Veteran of alternative diagnostic codes or
potential "daily life" evidence. See Vazquez-Flores v.
Shinseki, No. 08-7150 (Fed. Cir. Sept. 4, 2009). In any
event, Vazquez letters were issued to the Veteran in May 2008
and September 2008. Reviewing the VCAA and Vazquez notices
together, in light of the Federal Circuit's decision, the
Board finds that the Veteran has received 38 U.S.C.A.
§ 5103(a) compliant notice as to his claims for increased
ratings.
The Veteran has received all essential notice, has had a
meaningful opportunity to participate in the development of
his claims, and is not prejudiced by any technical notice
deficiency along the way. See Conway v. Principi, 353 F.3d
1369 (Fed. Cir. 2004). In any event, the Veteran has not
demonstrated any prejudice with regard to the content of any
notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009)
(Reversing prior case law imposing a presumption of prejudice
on any notice deficiency, and clarifying that the burden of
showing that an error is harmful, or prejudicial, normally
falls upon the party attacking the agency's determination.)
See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed.
Cir. 2006).
The Board also finds that VA has complied with all assistance
provisions of VCAA. The evidence of record contains the
Veteran's service treatment records, service personnel
records, VA outpatient treatment records, and private
treatment records. There is no indication of relevant,
outstanding records which would support the Veteran's claims.
38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). The
Veteran underwent VA examinations in September 2004, October
2004, May 2006, July 2006, and December 2007 pertaining to
the issues in appellate status. The examination reports
obtained are thorough and contain sufficient information to
decide the issues on appeal. See Massey v. Brown, 7 Vet.
App. 204 (1994).
For all the foregoing reasons, the Board concludes that VA's
duties to the Veteran have been fulfilled with respect to the
increased rating issues in appellate status.
I. Service connection
Applicable law provides that service connection will be
granted if it is shown that the veteran suffers from
disability resulting from an injury suffered or disease
contracted in line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in line of
duty, in the active military, naval, or air service. 38
U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury
occurred in service alone is not enough; there must be
chronic disability resulting from that injury. If there is
no showing of a resulting chronic condition during service,
then a showing of continuity of symptomatology after service
is required to support a finding of chronicity. 38 C.F.R. §
3.303(b).
Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with 38 C.F.R.
§ 4.125(a), a link, established by medical evidence, between
current symptoms and an in-service stressor; and credible
supporting evidence that the claimed in-service stressor
occurred. If the evidence establishes that the veteran
engaged in combat with the enemy and the claimed stressor is
related to that combat, in the absence of clear and
convincing evidence to the contrary, and provided that the
claimed stressor is consistent with the circumstances,
conditions, or hardships of the veteran's service, the
veteran's lay testimony alone may establish the occurrence of
the claimed inservice stressor. See 38 U.S.C.A. § 1154(b);
38 C.F.R. § 3.304(f). The provisions of 38 C.F.R. § 4.125(a)
require that a diagnosis of a mental disorder conform to the
Diagnostic and Statistical Manual, Fourth Edition (DSM-IV).
The evidence of record does not reflect that the Veteran
participated in combat with the enemy, nor does the Veteran
assert stressors due to combat. Because the record does not
demonstrate that the Veteran engaged in combat with the
enemy, his alleged in-service stressors must be corroborated.
Accordingly, the primary question which must be resolved in
this decision is whether the Veteran sustained a qualifying
stressor within the requirements of 38 C.F.R. § 3.304(f), as
discussed above.
The Veteran has reported that while he participated in
training in preparation for combat duties and his unit was
deployed to combat operations in Iraq from April 2004 to
April 2005, he did not deploy due to medical disabilities.
He stated that he was part of the Rear Detachment Unit
serving stateside. He stated that as soldiers returned from
Iraq, he was responsible for taking them to their medical
appointments for treatment, and that he participated in
several funeral details for soldiers who lost their lives.
Correspondence dated in July 2006 from a VA psychiatrist
states that the Veteran suffers from PTSD. The examiner
stated that he suffers from recurrent nightmares of
experiences he had while in training for combat in Iraq and
seeing the bodies of comrades returned from Iraq combat.
The Veteran's service personnel records reflect that he was a
recruiter during the period in question, specifically during
the time his unit was deployed. The service personnel
records do not reflect that the Veteran served in the Rear
Detachment Unit, which he asserts included responsibilities
of taking soldiers to medical appointments and participating
in funeral details for fellow soldiers. The Board
acknowledges, however, that the Veteran was treated for a
mental disability prior to discharge from service and in the
months following separation, and service connection is in
effect for major depressive disorder with panic attacks and
agoraphobia. Such in-service treatment suggests that he may
have been experiencing survivor's guilt and may have been
exposed to injured and deceased soldiers, even though he did
not witness any such injuries or death. Affording the
Veteran the benefit of the doubt, and based on the objective
medical findings of the VA examiner, the Board finds that the
Veteran does suffer from PTSD and that the PTSD is due to
experiences sustained in service. In sum, the Board finds
that the statutory and regulatory criteria for entitlement to
service connection for PTSD have been met.
II. Increased ratings
Disability evaluations are determined by the application of
the Schedule For Rating Disabilities, which assigns ratings
based on the average impairment of earning capacity resulting
from a service-connected disability. 38 U.S.C.A. § 1155; 38
C.F.R. Part 4. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7.
In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the veteran's condition. Schafrath v.
Derwinski, 1 Vet. App. 589, 594 (1991). With regard to the
disability ratings assigned to hemorrhoids and plantar
fasciitis with right heel spur, the appeal arises from the
original assignment of disability evaluations following an
award of service connection, thus the severity of the
disability at issue is to be considered during the entire
period from the initial assignment of the disability rating
to the present time. See Fenderson v. West, 12 Vet. App. 119
(1999).
With regard to the remaining issues on appeal, where an
increase in the level of a service-connected disability is at
issue, the primary concern is the present level of
disability. Francisco v. Brown, 7 Vet. App. 55 (1994).
Nevertheless, the Board acknowledges that a claimant may
experience multiple distinct degrees of disability that might
result in different levels of compensation from the time the
increased rating claim was filed until a final decision is
made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The
analysis in the following decision is therefore undertaken
with consideration of the possibility that different ratings
may be warranted for different time periods.
It should also be noted that when evaluating disabilities of
the musculoskeletal system, 38 C.F.R. § 4.40 allows for
consideration of functional loss due to pain and weakness
causing additional disability beyond that reflected on range
of motion measurements. DeLuca v. Brown, 8 Vet. App. 202
(1995). Further, 38 C.F.R. § 4.45 provides that
consideration also be given to weakened movement, excess
fatigability and incoordination.
Hemorrhoids
At the October 2004 VA examination, the Veteran reported
developing hemorrhoids in 2001. He reported flare-ups of
burning, itching, and bleeding approximately one time per
month. He treats with Nupercaine cream, which helps. The
hemorrhoids will usually last up to two weeks. On physical
examination, there was a hemorrhoid at 11 o'clock, nontender
to palpation, not thrombosed.
In May 2006, the Veteran underwent a VA examination. A
rectal examination revealed no hemorrhoids, and an
examination within normal limits.
At a July 2006 VA examination, the Veteran complained of
hemorrhoids being constantly present. He indicated treatment
with dibucaine ointment and docusate stool softener twice
daily. The functional impairment is rectal bleeding,
soreness of the anus, frequent painful swelling, aggravated
on bowel movements by hard stools. On physical examination,
there was no evidence of ulceration, fissures, or reduction
of lumen. There were no hemorrhoids detected during the
rectal examination.
In December 2007, the Veteran underwent a VA examination. He
complained of anal itching, pain, swelling, and bleeding
after a bowel movement. He denied any diarrhea, tenesmus,
and perianal discharge. Burning pain, itching and swelling
are very uncomfortable. He denied leakage of stool. He
reported hemorrhoids that are constantly present. He treats
with docusate sodium daily, dibucaine ointment, and psyllium
oral powder. A rectal examination showed no evidence of
ulceration, fissures, reduction of lumen, trauma, rectal
bleeding, proctitis, infections, spinal cord injury,
protrusion or loss of sphincter control. External
hemorrhoids were present on examination of the rectum located
at 9 o'clock which were reductive. There was no evidence of
bleeding. Thrombosis was absent. There was no evidence of
frequent recurrence, without excessive redundant tissue. No
rectum fistula was noted.
The Veteran's service-connected hemorrhoids are rated as zero
percent disabling pursuant to Diagnostic Code 7336. Under
38 C.F.R. § 4.114, Diagnostic Code 7336, a zero percent
rating is warranted for hemorrhoids (external or internal)
where there is evidence of mild to moderate symptomatology.
A 10 percent rating is warranted where there is evidence of
large or thrombotic hemorrhoids, which are irreducible, with
excessive redundant tissue, and frequent recurrences. A 20
percent evaluation, the maximum allowed, is warranted where
hemorrhoids are present, with persistent bleeding and
secondary anemia, or with fissures.
Applying the schedular criteria to the evidence of record,
the Board finds that the criteria for a 10 percent rating for
hemorrhoids have not been met. As detailed, while
hemorrhoids were detected at two of the four VA examinations,
the hemorrhoids were not described as large or thrombotic, or
irreducible with excessive redundant tissue. As detailed,
both the October 2004 and December 2007 examiners commented
that the hemorrhoids were not thrombosed, and the December
2007 VA examiner stated that there was no evidence of
frequent recurrent, and there was no excessive redundant
tissue. Hemorrhoids were reducible. The evidence of record,
therefore, contains no objective medical evidence to support
a compensable disability rating. Thus, the criteria for a 10
percent rating under Diagnostic Code 7336 have not been met.
Right foot, plantar fasciitis with heel spur
In October 2004, the Veteran underwent a VA examination. He
reported developing right foot pain in February 1993 for
unknown reasons. He reported pain of a 6 on a 10 point
scale, two times per week with prolonged walking or wearing
boots. He treats with inserts and ice; the pain will usually
subside in a couple of days. It was noted that an August
2003 x-ray examination showed a heel spur. On physical
examination, there was tenderness to palpation of the right
heel. The examiner diagnosed right foot plantar fasciitis
and heel spur.
A June 2005 VA outpatient entry reflects that the Veteran
would be referred for arch supports and heel cushions due to
plantar fasciitis.
In July 2006, the Veteran underwent another VA examination.
With regard to his heel spur, he complained of pain located
at the bottom of the right foot for 15 years, which occurs
constantly. The pain travels to the heel. The
characteristic of the pain is burning, sharp, and tingling in
nature. He reported a pain level of 7. The pain can be
elicited by physical activity or by itself. It is relieved
by rest, Ibuprofen and cushions in his shoes. At the time of
pain, he can function with medication. He has sharp burning
pain whenever he puts weight bearing on the heel and worsens
with prolonged standing, walking or running. For the foot
condition, at rest he has pain, weakness, stiffness,
swelling, and fatigue. While standing or walking, he has
pain, weakness, stiffness, swelling, and fatigue. He cannot
do any prolonged walking or standing. With regard to his
plantar fasciitis, he complained of pain located at the
bottom of feet for 15 years, occurring constantly. The pain
travels to the toes. The characteristic of the pain is
burning, sharp, and tingling in nature. The pain level is a
6. The pain can be elicited by physical activity, and is
relieved by rest, Motrin, and shoe inserts. At the time of
pain, he can function without medication. At rest, he has
pain, weakness, stiffness, fatigue, and while standing or
walking he has pain, weakness, stiffness and fatigue. He had
physical therapy in 1991 with residuals of incomplete relief
from the symptoms. The functional impairment is he cannot do
any prolonged standing or walking. Physical examination of
the right foot revealed no tenderness, weakness, edema,
atrophy or disturbed circulation. There was pes planus
present, but no valgus. The right foot showed no
forefoot/midfoot malalignment. There was no tenderness to
palpation of the right foot plantar surface. The right
Achilles tendon revealed good alignment. Pes cavus was not
present. No hammer toes were found on examination. Morton's
Metatarsalgia was not present. There was no hallux valgus or
hallux rigidus. He did not have any limitation with standing
and walking. He does not require any type of support with
his shoes. X-ray examination of the right foot revealed
minimal post-traumatic changes, medial basal aspect of the
distal phalanx of the big toe, and early osteoarthritis,
first metatarsophalangeal joint, and plantar calcaneal spur.
The examiner diagnosed right heel spur, and plantar
fasciitis.
In May 2007, the Veteran underwent a VA podiatry evaluation.
He complained of chronic heel pain for 16 years. On physical
examination, there was no edema or erythema. There was
peeling soles of the feet, right worse than left, with right
heel fissures. There were no open wounds or callosities.
There was lack of protective sensation plantar hallux and
heels. The impression was chronic plantar fasciitis and
tinea pedis.
A June 2007 VA outpatient entry reflects that he had an
injection of the right heel done three and a half weeks
prior. He complained of continued chronic bilateral heel
pain with the right heel better after first injection. On
physical examination, there was no edema or erythema. There
was peeling soles of the feet, right worse than left, with
right heel fissures. There were no open wounds or
callosities. There was lack of protective sensation plantar
hallux and heels. The impression was chronic plantar
fasciitis and tinea pedis.
In December 2007, the Veteran underwent another VA
examination pertaining to his heel spur and plantar
fasciitis. With regard to his right heel spur, he complained
of pain in the heel occurring two and a half times per day
lasting for one and a half hours. The pain travels to all
over the legs. The characteristic of the pain is crushing,
squeezing, burning, aching, oppressing, sharp, sticking and
cramping. He described the pain as a 9. The pain can be
elicited by physical activity and putting weight on the feet.
The pain comes by itself. It is relieved by rest,
medication, steroid shots, and arch support shoe inserts. At
the time of pain, he requires bed rest. There is pain when
standing or putting any weight on the heels. At rest he has
pain, swelling, and fatigue, but no weakness or stiffness.
While standing or walking, he has pain, weakness, stiffness,
swelling or fatigue. With regard to his plantar fasciitis,
he reported pain located at the bottom of the foot, the pain
occurring five times per day, lasting for one and a half
hours. The pain is localized. The characteristic of the
pain is crushing, squeezing, burning, aching, sharp, and
cramping. He reported a pain level of 9. The pain can be
elicited by physical activity. It is relieved by rest,
medication, steroid injections, cream, and shoe inserts. At
the time of pain, he can function with extreme difficulty.
The bottoms of the feet are very painful and inflamed. There
is redness and peeling of the skin on the soles, open wounds
and numbness and tingling. At rest, he has pain and fatigue,
but no weakness, stiffness, or swelling. While standing or
walking, he has pain, weakness, stiffness, swelling, and
fatigue. Physical examination of the right foot revealed
tenderness, but no painful motion, edema, disturbed
circulation, weakness, or atrophy of the musculature. There
was active motion in the metatarsophalangeal joint of the
right great toe. Gait was abnormal, slow, and he walked with
a limp because of back pain and broken right fifth toe. Pes
planus and pes cavus were not present. No hammer toes were
found on examination. Morton's Metatarsalgia was not
present. There was no hallux valgus or hallux rigidus. He
had limitations standing and walking; he was able to stand
for 15 to 30 minutes. He requires heel shoe inserts. He
requires orthopedic shoes, corrective shoes, arch supports,
and build-up of the shoes. The symptoms and pain are not
relived by the noted corrective wear. X-ray examination
showed early osteoarthritis of the first metatarsophalangeal
joint and a plantar calcaneal spur. The examiner diagnosed
right foot plantar fasciitis and right heel spur.
A December 2008 MRI of the right foot showed calcaneal
enthesophyte with mild plantar fasciitis.
The Veteran's right heel spur syndrome and plantar fasciitis
is currently rated 10 percent disabling per 38 C.F.R.
§ Diagnostic Code 5284. Moderate residuals of foot injuries
warrant a 10 percent evaluation. A 20 percent rating
requires moderately severe residuals. Severe residuals of
foot injuries warrant a 30 percent evaluation. A 40 percent
evaluation requires that the residuals be so severe as to
result in actual loss of use of the foot. 38 C.F.R. § 4.71a,
Diagnostic Code 5284.
Based on the objective medical evidence of record, to include
the VA examination reports and VA outpatient treatment
records, the Board finds that the manifestations of the
Veteran's heel spur and plantar fasciitis do not constitute a
moderately severe foot disability. The examination reports
and treatment records have revealed tenderness and fissures
of the foot, but no painful motion, edema, disturbed
circulation, weakness, or atrophy of the musculature. While
the Veteran complains of functional impairment and limitation
of walking and standing due to his heel spur and plantar
fasciitis, it is clear that his limitations are also due to
other service-connected disabilities, such as his low back
and knee disabilities. As detailed, the December 2007 VA
examiner commented that his gait was abnormal and slow due to
his back and knee disabilities, and due to a broken toe. The
overall medical evidence suggests that any heel spur and
plantar fasciitis does not reach a moderately severe degree
of severity so as to warrant a disability rating in excess of
10 percent.
The Board has also considered alternative diagnostic codes
that potentially relate to impairment of the feet. The Board
finds that a compensable rating is not warranted under any
alternative provision. The July 2006 VA examination showed
objective findings of pes planus, but there were no objective
findings of marked deformity, pain on manipulation and use,
swelling on use, or characteristic callosities. The
objective evidence does not reflect weak foot (DC 5277), claw
foot (DC 5278), anterior metatarsalgia (DC 5279), hallux
valgus (DC 5280), hammer toe (DC 5282), or malunion or
nonunion of tarsal or metatarsal bones (DC 5283).
The Board has considered the principles of DeLuca which
contemplate whether factors including functional impairment
and pain as addressed under 38 C.F.R. §§ 4.10, 4.40, 4.45
would warrant a higher rating. See Spurgeon v. Brown, 10
Vet. App. 194 (1997). While the Veteran has complained of
functional impairment due to plantar fasciitis and heel spur,
the objective findings do not support the complaints, as the
examiners have not detected painful motion, edema, disturbed
circulation, weakness, or atrophy of the musculature. The
main functional impairment appears to be inability to stand
or walk for extended periods of time; however, as detailed,
such appeared to be contributed to by other disabilities, and
is not solely due to his plantar fasciitis and heel spur. In
any event, even acknowledging the Veteran's complaints of
functional limitation, the Board finds that the currently
assigned 10 percent disability rating adequately compensates
him for any such symptoms and any functional loss in this
case.
Erectile Dysfunction
Service connection is in effect for hypertension, and the
Veteran has erectile dysfunction due to taking medication for
hypertension. In this regard, the Board notes that erectile
dysfunction is not listed in the Rating Schedule; however,
when an unlisted condition is encountered, it will be
permissible to rate under a closely related disease or injury
in which not only the functions affected, but the anatomical
localization and symptomatology are closely analogous. 38
C.F.R. §§ 4.20, 4.27. As such, the Veteran's impotence would
most appropriately be rated under 38 C.F.R. § 4.115b,
Diagnostic Code 7522, which provides for a 20 percent rating
for deformity of the penis with loss of erectile power. As
the Veteran's disability in this case is manifested by
impotency without visible deformity of the penis, as
confirmed by the objective medical evidence of record, a
compensable rating is not warranted under that code. The
provisions of 38 C.F.R. § 4.31 indicate that in every
instance where the minimum schedular evaluation requires
residuals and the schedule does not provide for a zero
percent evaluation, a zero percent evaluation will be
assigned when the required symptomatology is not shown. 38
C.F.R. § 4.31. To obtain a compensable rating under
Diagnostic Code 7522, deformity of the penis with loss of
erectile power must be demonstrated. In the instant case, it
is undisputed that the Veteran has loss of erectile power.
The rating criteria, however, also requires deformity of the
penis to warrant a compensable evaluation.
The Board notes that, in recognition of the Veteran's
erectile dysfunction, he was awarded special monthly
compensation pursuant to 38 U.S.C.A. § 1114(k) and 38 C.F.R.
§ 3.350(a) based on loss of use of a creative organ by the
RO. Unlike special monthly compensation, which is
specifically designed to compensate veterans for disabilities
such as erectile dysfunction, the rating schedule is designed
with a different purpose in mind: to provide compensation
for disabilities which result in an impairment in earning
capacity (i.e. interference with employment). See 38 C.F.R.
§§ 3.321(a), 4.1. Given that the Veteran's erectile
dysfunction has not (and could not possibly have) interfered
with his employment, a compensable evaluation is not
warranted under the schedular criteria. Accordingly, the
criteria for a compensable evaluation have not been met and
the Veteran's claim is denied.
Sinusitis
Service connection is in effect for sinusitis, rated
noncompensably disabling pursuant to 38 C.F.R. § 4.97,
Diagnostic Code 6510, sinusitis, pansinusitis, chronic.
Pursuant to the General Rating Formula for Sinusitis, a
noncompensable evaluation is warranted for findings detected
by X-ray only. A 10 percent evaluation is warranted with
evidence of one or two incapacitating episodes per year of
sinusitis requiring prolonged (lasting four to six weeks)
antibiotic treatment, or three to six non-incapacitating
episodes per year of sinusitis characterized by headaches,
pain, and purulent discharge or crusting. A 30 percent
evaluation is assigned with evidence of three or more
incapacitating episodes per year of sinusitis requiring
prolonged (lasting four to six weeks) antibiotic treatment,
or more than six non-incapacitating episodes per year of
sinusitis characterized by headaches, pain, and purulent
discharge or crusting. A 50 percent evaluation is assigned
with evidence of following radical surgery with chronic
osteomyelitis, or near constant sinusitis characterized by
headaches, pain and tenderness of affected sinus, and
purulent discharge or crusting after repeated surgeries. The
Note corresponding to the diagnostic criteria states that an
incapacitating episode of sinusitis means one that requires
bed rest and treatment by a physician. 38 C.F.R. § 4.97,
Diagnostic Code 6512. The Board also notes that service
connection is in effect for allergic rhinitis, rated 10
percent disabling pursuant to Diagnostic Code 6522, which
contemplates allergic rhinitis without polyps, but with
greater than 50-percent obstruction of nasal passage on both
sides or complete obstruction on one side. Such disability
is not in appellate status, and the symptomatology associated
with his allergic rhinitis will not be considered in rating
his sinusitis.
An August 2004 CT scan reflects no evidence of acute or
chronic sinusitis. The paranasal sinuses were clear.
In October 2004, the Veteran underwent a VA examination.
With regard to allergic rhinitis and sinusitis, the Veteran
reported developing a runny nose, watery eyes in 1996. He
reported symptoms all year round and treats with Flonase,
which helps some. He has allergies developing to sinusitis
four to five times per year. Sinusitis is treated with
antibiotics, which usually lasts three weeks. On physical
examination, there was clear drainage from nose. He was
sniffing throughout examination. There was tenderness to
palpation of the sinuses. The examiner diagnosed recurring
sinusitis and allergic rhinitis.
In July 2006, the Veteran underwent another VA examination.
With regard to sinusitis, the Veteran stated that sinusitis
occurs constantly. During the attacks, he is incapacitated
as often as two times per month, and each incident lasts for
six days. He has headaches with sinus attacks. Antibiotic
treatment is needed for sinusitis. He has suffered from
interference with breathing through the nose, purulent
discharge from the nose, hoarseness of the voice and
shortness of breath. The functional impairment was repeated
sneezing, congestion, and sore throat. On physical
examination of the nose, there was no nasal obstruction, no
deviated septum, no partial loss of the nose, no partial loss
of the ala, no car and no disfigurement. There was no
rhinitis, and no sinusitis detected. The sinus x-ray
revealed clear sinuses, and nasal septal deviation to the
right.
In December 2007, the Veteran underwent another VA
examination. With regard to sinusitis and allergic rhinitis,
he reported that sinusitis occurs four to five times per year
and each episode lasts for five and a half weeks. During the
sinusitis episodes, he is not incapacitated. He experiences
four to five non-incapacitating episodes per year. He
experiences headaches with his sinus episodes. Antibiotic
treatment lasting four to six weeks is needed for sinusitis.
He reports interference with breathing through the nose. He
reports purulent discharge from the nose, hoarseness of the
voice, pain, crusting and shortness of breath and asthma
attacks. Specifically, there is purulent discharge and
crusting. There is hoarseness of the voice, headaches, pain
and tenderness of the sinuses. The symptoms occur during
winter and summer. He reported treatment with Flunisolide
nasal for an unknown length of time with poor response. He
also reported treatment with Mometasone furoate for an
unknown length of time but minimal response. On physical
examination, there was deviated septum on the right. Nose
examination did not reveal nasal obstruction, loss of part of
the nose, loss of part of the ala, obvious disfigurement, and
nasal polyps. The findings were slight deviation of the
nasal septum to the right. There was no rhinitis or
sinusitis detected. An x-ray examination revealed clear
sinuses and nasal septal deviation to the right.
VA treatment records reflect the Veteran's complaints of sore
throat, swelling of tonsils, hearing decrease, and nasal
congestion every two to three months, and that he has been
prescribed Flunisolide.
The Board has determined that a compensable evaluation is not
warranted for sinusitis. While the Veteran has reported year
round sinusitis symptoms, to include sneezing, congestion,
and sore throat, the Board notes that on examinations in
August 2004, October 2004, July 2006, and December 2007, the
examiners did not detect sinusitis symptomatology. The
October 2004 examination noted tenderness to palpation of the
sinuses, but noted that that there was clear drainage from
the nose. Despite the Veteran's contentions that he suffers
from headaches, purulent discharge from the nose, hoarseness
of the voice, and shortness of breath due to sinusitis, the
medical evidence of record, to include VA examination reports
and VA outpatient treatment records, do not contain any
objective findings of these symptoms, other than tenderness
of the sinuses. Again, the Veteran has been examined during
many different months and seasons during the appeal period,
and only subjective complaints are reflected, not objective
findings. With regard to incapacitating episodes, as
detailed, the July 2006 VA examination report reflects the
Veteran's report that during sinusitis attacks, he is
incapacitated as often as two times per month, and the
incident lasts for six days. The December 2007 VA
examination report, however, reflects the Veteran's report
that sinusitis occurs four to five times per year that last
five and a half weeks but he denied incapacitating episodes.
The VA clinical records do not reflect incapacitating
episodes requiring 4 or more weeks of antibiotic treatment or
3 or more non-incapacitating episodes per year or symptoms
nearly approximating these criteria.
In sum, the evidence does not support a compensable rating
per Diagnostic Code 6512, for sinusitis. As the preponderance
of the evidence is against the Veteran's claim for an
increased disability rating for chronic sinusitis, the
benefit-of- the-doubt rule is inapplicable, and the claim
must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski,
1 Vet. App. 49 (1990).
Bilateral hearing loss
The Ratings Schedule provides a table for ratings purposes
(Table VI) to determine a Roman numeral designation (I
through XI) for hearing impairment, established by a state-
licensed audiologist including a controlled speech
discrimination test (Maryland CNC), and based upon a
combination of the percent of speech discrimination and the
puretone threshold average which is the sum of the puretone
thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by
four. See 38 C.F.R. § 4.85.
Table VII is used to determine the percentage evaluation by
combining the Roman numeral designations for hearing
impairment of each ear. The horizontal row represents the
ear having the poorer hearing and the vertical column
represents the ear having the better hearing. Id.
Table VIa will be used when the examiner certifies that the
use of speech discrimination test is not appropriate because
of language difficulties, inconsistent speech discrimination
scores, etc., or when indicated under the provisions of 38
C.F.R. § 4.86. 38 C.F.R. § 4.85(c).
When the puretone threshold at each of the four specified
frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels
or more, the rating specialist will determine the Roman
numeral designation for hearing impairment from either Table
VI or Table VIa, whichever results in the higher numeral.
Each ear will be evaluated separately. 38 C.F.R. § 4.86(a).
When the puretone threshold is 30 decibels or less at 1000
Hertz, and 70 decibels or more at 2000 Hertz, the rating
specialist will determine the Roman numeral designation for
hearing impairment from either Table VI or Table VIa,
whichever results in the higher numeral. That numeral will
then be elevated to the next higher. 38 C.F.R. § 4.86(b).
To evaluate the degree of disability from defective hearing,
the rating schedule establishes eleven auditory acuity levels
designated from I for essentially normal acuity, through XI
for profound deafness. 38 C.F.R. § 4.85, Tables VI, VII.
A noncompensable evaluation is provided where hearing in the
better ear is I and hearing in the poorer ear is I through
IX; where hearing in the better ear is II, and hearing in the
poorer ear is II to IV; or where there is level III hearing
in both ears. A 10 percent disability rating is warranted
where hearing in the better ear is I, and hearing in the
poorer ear is X to XI; or where hearing in the better ear is
II, and hearing in the poorer ear is V to XI; or where
hearing in the better ear is III, and hearing in the poorer
ear is IV to VI.. 38 C.F.R. § 4.85, Table VII, Diagnostic
Code 6100.
Pertinent case law provides that the assignment of disability
ratings for hearing impairment are to be derived by the
mechanical application of the Ratings Schedule to the numeric
designations assigned after audiometry evaluations are
rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992).
In September 2004, prior to discharge from service, the
Veteran underwent a VA audiological examination. The
examiner noted that normal hearing was indicated at his
December 1984 induction examination, and subsequent
audiograms showed some decrease in hearing thresholds within
the normal range, most notably in the low frequencies and at
3000 Hertz in both ears. The most recent audiogram in
February 2004 showed low-normal to mild hearing loss.
Puretone thresholds for the ears were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
N/A
30
25
20
20
LEFT
N/A
25
20
30
25
The puretone average in the right ear was 24 decibels, and 25
decibels in the left ear. Speech recognition scores were 76
percent in the right ear, and 80 percent in the left ear.
The examiner diagnosed low-normal to mild sensorineural
hearing loss bilaterally. Such findings translate to level
III hearing in the right ear and level III hearing in the
left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII,
Diagnostic Code 6100, this equates to noncompensable hearing
loss.
In May 2006, the Veteran underwent another VA audiological
examination. Puretone thresholds for the ears were as
follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
N/A
50/35
50/50
50/40
60/50
LEFT
N/A
50/40
50/35
60/50
70/60
The two numbers represented the first and second attempts,
but it was considered to be an invalid test. The examiner
commented that the audiogram showed evidence of pure tone
thresholds in the 35-60 decibel range with changing levels on
re-testing. Speech reception threshold at 15 decibels with
100 percent discrimination, making the results of this test
incongruus. Furthermore, the testing audiologist stated that
there were many findings consistent with malingering. Thus,
the examiner was unable to confirm the presence of hearing
loss. His audiogram was internally inconsistent, and
consistent with malingering. His speech reception threshold
at 15 decibels indicates that he probably has normal hearing.
In February and November 2007, the Veteran sought VA
outpatient treatment. On audiological testing in February
2007, a mild to moderate sensorineural hearing loss was
present from 250 Hertz to 3000 Hertz, to a mild sensorineural
hearing loss at 4000 Hertz rising to normal at 8000 Hertz.
With regard to the left ear, there was a mild to moderate
sensorineural hearing loss present from 250 Hertz to 1000
Hertz, to a moderate sensorineural hearing loss from 2000
Hertz to 8000 Hertz. Word recognition scores were 96 percent
in the right ear, and 76 percent in the left ear. On
audiological testing in November 2007, there was moderate
sloping to severe sensorineural hearing loss from 250 Hertz
to 8000 Hertz in the right ear, and severe sensorineural
hearing loss sloping to a profound mixed hearing loss from
250 Hertz to 8000 Hertz. Word recognition scores were 92
percent in the right ear, and 60 percent in the left ear.
While such results have been acknowledged, the Board notes
that for purposes of determining the appropriate rating,
consideration is to be given to the sum of the puretone
thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by
four. See 38 C.F.R. § 4.85. The objective findings from
these outpatient evaluations discussed and considered
puretone thresholds that are to not be considered under the
rating criteria. Thus, the findings cannot provide the basis
for rating the Veteran's disability.
In December 2007, the Veteran underwent another VA
audiological examination. Puretone audiological testing
showed the following:
HERTZ
500
1000
2000
3000
4000
RIGHT
N/A
85
90
90
90
LEFT
N/A
85
85
85
85
The puretone average in the right ear was 87 decibels, and 85
decibels in the left ear. Attempts were made to contact the
Veteran for completion of the Audio evaluation; however, the
Veteran did not respond. Therefore, the speech audiometry
was not completed. As the Veteran failed to cooperate with
completion of the audiological examination, the Board refuses
to consider such puretone audiological results in rating his
disability. This is especially so since the May 2006 VA
examiner found inconsistencies with the puretone threshold
results and speech discrimination results. Thus, without
speech discrimination test results, the Board finds that such
audiological findings are not probative.
The Veteran submitted a March 2008 private audiological
examination; however, the examiner did not provide an
interpretation of the puretone thresholds for the ears, thus
the Board is unable to use such findings in determining a
disability rating under the applicable rating criteria.
In light of the above, the only VA audiological results that
can be used to determine the proper disability rating to be
assigned to the Veteran's hearing loss is the September 2004
VA examination. Based on such results, a noncompensable
rating is warranted. The Board notes that while VA has a
duty to assist the Veteran in the development of his claim,
the Veteran has a duty to cooperate with VA. See Wood v.
Derwinski, 1 Vet. App. 190 (1991). The law also provides
that a claimant for VA benefits has the responsibility to
present and support the claim. 38 U.S.C.A. § 5107(a). In
this case, it is clear that the Veteran has failed to
cooperate with VA examiners who have attempted to evaluate
his service-connected hearing loss. Based on the VA
audiological evaluations on file, none of the examination
results support a compensable disability rating. Again,
subsequent to September 2004, a VA examiner has been unable
to record valid and complete puretone thresholds results and
speech discrimination scores due to unreliable results.
The Board acknowledges the Veteran's contentions regarding
impact of his hearing loss on his daily activities, and VA's
obligation to resolve all reasonable doubt in the Veteran's
favor. However, because assignment of disability ratings for
hearing impairment are derived by a mechanical application of
the rating schedule to the numeric designations assigned
after audiometry evaluations are rendered and in light of the
Veteran's failure to cooperate with examiners, there is no
doubt as to the proper evaluation to assign. Lendenmann; 38
C.F.R. § 4.85, Tables VI, VIA, and VII, Diagnostic Code 6100.
Applying the only reliable audiological test results to the
regulatory criteria, the Board is compelled to conclude that
the preponderance of the evidence is against entitlement to a
compensable rating for bilateral hearing loss disability.
Thus, there is no reasonable doubt to be resolved. The
Veteran may always advance an increased rating claim if the
severity of his hearing loss disability should increase in
the future.
In summary, for the reasons and bases expressed above, the
Board has concluded that a compensable rating is not
warranted for bilateral hearing loss disability.
Accordingly, the benefit sought on appeal is denied.
Otitis externa
Prior to November 29, 2007, the Veteran's chronic otitis
externa has been rated noncompensably disabling, pursuant to
38 C.F.R. § 4.88a, Diagnostic Code 6210, which provides for a
maximum 10 percent rating where chronic otitis externa is
exhibited by swelling, discharge and itching, requiring
frequent and prolonged treatment. 38 C.F.R. § 4.87,
Diagnostic Code 6210. From November 29, 2007, the Veteran's
chronic otitis externa is rated 10 percent disability per
Diagnostic Code 6210, thus the maximum schedular rating for
such diagnostic code.
For the period prior to November 29, 2007, the Board has
reviewed the evidence to determine whether a compensable
rating is warranted, and for the period from November 29,
2007, the Board has reviewed the evidence to determine
whether a rating in excess of 10 percent is warranted. The
September 2004 VA audiological examination report reflects
that the Veteran was treated for recurrent otitis media and
otitis externa on a number of occasions during service. The
Veteran reported that his most recent infection was
approximately 8 months prior, when he was evaluated in the
emergency room with dizziness, fever, ear pain, and right
sided facial weakness. On physical examination, otoscopic
examination revealed clear ear canals and intact tympanic
membrane (TM) bilaterally. Some scarring was noted on both
TM's possibly from prior ear infections. In May 2006, the
Veteran underwent another VA examination. The Veteran
complained of a history of dizzy spells, occurring
approximately twice a week, lasting minutes in duration. The
last one occurred approximately two weeks prior. He stated
that he has had this evaluated and it is due to his ears. He
has not undergone more advanced testing. Upon physical
examination, the examiner diagnosed otitis, stating that he
has evidence of scarring of his eardrums and possible
previous perforation; however, he had no active pathology on
examination to suggest a diagnosis of otitis. In December
2007, the Veteran underwent another VA examination. The
Veteran reported dizziness and balance problems, to include
having to hold onto things around him. He reported yellow
pus discharge from his ears. Upon physical examination,
there was abnormal external right ear, and disturbance of
balance. With regard to the left ear, there was no active
infection, but disturbance of balance. There were no signs
of staggering gait, no signs of cerebella gait. The examiner
stated that his otitis had progressed to chronic bilateral
eustachian dysfunction.
The Board has determined that prior to November 29, 2007, a
compensable disability rating is not warranted pursuant to
Diagnostic Code 6210, as prior to such period, the objective
evidence did not show swelling, dry and scaly or serous
discharge, and itching requiring frequent and prolonged
treatment. The Veteran did complain of ear pain at both the
September 2004 and May 2006 VA examinations, and pus draining
from ears at the May 2006 VA examination, and the examiner
commented that the Veteran has a stated history of repeated
episodes of purulent drainage from his ear. The objective
evidence, however, to include VA outpatient treatment records
have not detected any such findings prior to November 29,
2007. Moreover, the May 2006 VA examiner commented that in
light of the malingering detected on audiological testing, it
is difficult to believe any of the stated complaints, as they
are all subjective complaints without objective confirmation.
The Board has given consideration to Diagnostic Code 6204,
which provides for a 10 percent rating for occasional
dizziness, and a 30 percent rating for dizziness and
occasional staggering. The Note corresponding to such
diagnostic code states that objective findings supporting the
diagnosis of vestibular disequilibrium are required before a
compensable evaluation can be assigned under this code. In
consideration of Diagnostic Code 6204, while the Veteran
subjectively complains of dizziness, prior to November 29,
2007, a peripheral vestibular disorder had not been diagnosed
on objective examination. Thus a compensable rating is not
warranted under such diagnostic criteria. There is no other
appropriate diagnostic code which could provide a compensable
rating prior to November 29, 2007.
For the period from November 29, 2007, the Veteran is
currently in receipt of the maximum schedular 10 percent for
chronic otitis externa. Accordingly, he cannot receive a
rating higher than 10 percent pursuant to Diagnostic Code
6210. 38 C.F.R. § 4.87, Diagnostic Code 6210. The Board has
given consideration to assigning a 30 percent disability
rating per Diagnostic Code 6204; however, the subjective and
objective evidence does not reflect dizziness and occasional
staggering. The Veteran complained of balance problems but
no staggering, and the December 2007 examiner commented
initially that there were no signs of staggering gait and no
signs of cerebella gait, but then stated that there was some
staggering gait. The Board notes, however, that a December
2007 VA rotation vestibular test was essentially normal and
showed no evidence of central or peripheral vestibular
pathology, and while a rotation vestibular test revealed
abnormal phase at all test frequencies, it was likely that
such results were contaminated by the Veteran's inability to
maintain proper head orientation and the results should be
disregarded. Based on such results, the Board finds a
disability rating in excess of 10 percent is not warranted
from November 29, 2007.
There is no other diagnostic code which could provide a
compensable rating for the period prior to November 29, 2007,
and a disability rating in excess of 10 percent from November
29, 2007.
Extraschedular evaluation
In the Board's adjudication of the Veteran's increased
ratings claims, consideration has also been given to the
potential application of the various provisions of 38 C.F.R.
Parts 3 and 4, whether or not they were raised by the
Veteran. In this case, the Veteran has alleged that these
service-connected disabilities adversely affect his ability
to obtain and maintain employment. Disability evaluations
are determined by the application of a schedule of ratings
which is based on average impairment of earning capacity. 38
U.S.C.A. § 1155; 38 C.F.R. Part 4. To accord justice in an
exceptional case where the schedular standards are found to
be inadequate, the RO is authorized to refer the case to the
Chief Benefits Director or the Director of Compensation and
Pension Service for assignment of an extra-schedular
evaluation commensurate with the average earning capacity
impairment. 38 C.F.R. § 3.321(b)(1).
The criterion for such an award is a finding that the case
presents an exceptional or unusual disability picture with
such related factors as marked interference with employment
or frequent periods of hospitalization as to render
impractical application of regular schedular standards. Id.
The Court has held that the Board is precluded by regulation
from assigning an extraschedular rating under 38 C.F.R.
§ 3.321(b)(1) in the first instance; however, the Board is
not precluded from raising this question, and in fact is
obligated to liberally read all documents and oral testimony
of record and identify all potential theories of entitlement
to a benefit under the law and regulations. Floyd v. Brown,
9 Vet. App. 88 (1996). The Court further held that the Board
must address referral under 38 C.F.R. §3.321(b)(1) only where
circumstances are presented which the Director of VA's
Compensation and Pension Service might consider exceptional
or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
In Thun v. Peake, 22 Vet. App. 111 (2008), the Court
clarified the analytical steps necessary to determine whether
referral for extraschedular consideration is warranted.
Either the RO or the Board must first determine whether the
schedular rating criteria reasonably describe the Veteran's
disability level and symptomatology. Id. at 115. If the
schedular rating criteria do reasonably describe the
Veteran's disability level and symptomatology, the assigned
schedular evaluation is adequate, referral for extraschedular
consideration is not required, and the analysis stops.
If the RO or the Board finds that the schedular evaluation
does not contemplate the Veteran's level of disability and
symptomatology, then either the RO or the Board must
determine whether the Veteran's exceptional disability
picture includes other related factors such as marked
interference with employment and frequent periods of
hospitalization. Id. at 116. If this is the case, then the
RO or the Board must refer the matter to the Under Secretary
for Benefits or the Director of the Compensation and Pension
Service for the third step of the analysis, determining
whether justice requires assignment of an extraschedular
rating. Id.
In this case, the symptoms described by the Veteran
pertaining to all of the above disabilities fit appropriately
with the criteria found in the relevant Diagnostic Codes for
the disabilities at issue. There has been no objective
evidence that these service-connected disabilities interferes
with employment more than is contemplated by the current
schedular evaluations. The Board also observes that the
evidence does not establish that the Veteran has experienced
hospitalizations or other severe or unusual impairment due to
these service-connected disabilities. In short, the rating
criteria for these disabilities contemplate not only his
symptoms but the severity of his disabilities. The Board
does not find that the schedular criteria have been
inadequate for rating the manifestations of his service-
connected hemorrhoids, right foot plantar fasciitis with heel
spur, erectile dysfunction, sinusitis, bilateral hearing
loss, and otitis media/externa. See 38 U.S.C.A. § 1155
(Disability evaluations are determined by the application of
a schedule of ratings which is based on average impairment of
earning capacity). For these reasons, referral for
extraschedular consideration for these disabilities is not
warranted.
ORDER
Entitlement to service connection for PTSD is granted.
Entitlement to a compensable rating for hemorrhoids is
denied.
Entitlement to a disability rating in excess of 10 percent
for right foot plantar fasciitis with right heel spur is
denied.
Entitlement to a compensable rating for erectile dysfunction
is denied.
Entitlement to a compensable rating for sinusitis is denied.
Entitlement to a compensable rating for bilateral hearing
loss is denied.
Entitlement to a compensable rating for otitis media for the
period prior to November 29, 2007, is denied.
Entitlement to a disability rating in excess of 10 percent
for otitis media externa with bilateral eustachian tube
dysfunction and tympanosclerosis for the period from November
29, 2007 is denied.
REMAND
Service treatment records reflect that upon separation from
service the Veteran had an elevated liver function test and
an April 2004 abdominal ultrasound revealed a mildly fatty
liver. A December 2007 VA examination reflects abnormal
liver function testing, and negative hepatitis results. In
April 2008, the Veteran underwent a liver biopsy, and
cirrhosis was suspected. In April 2009, a liver needle
biopsy confirmed that the Veteran has mild to moderate
lobular and portal chronic inflammation, and portal and
septal fibrosis consistent with cirrhosis. In light of the
current diagnosis of cirrhosis, the Veteran should be
afforded a VA examination to assess whether the Veteran has a
chronic liver disability that was initially manifested in
service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for a VA
examination in order to determine the
nature and etiology of his current liver
disability. It is imperative that the
claims file be made available to the
examiner in connection with the
examination. Any medically indicated
special tests should be accomplished, and
all special test and clinical findings
should be clearly reported. After
reviewing the claims file and examining
the Veteran, the examiner should opine as
to the following:
a) Please list all disabilities of the
liver;
b) Did any current liver disability at
least as likely as not (a 50 percent or
higher degree of probability) have its
onset in service, or was any current
liver disability at least as likely as
not manifested during service?
All opinions and conclusions expressed
must be supported by a complete rationale
in a report. The examiner should
reconcile any opinion with the service
treatment records which reflect elevated
liver function tests and fatty liver.
2. After completion of the above, the RO
should review the expanded record and
determine if the benefit sought can be
granted. If the benefit sought is not
granted, the Veteran and his representative
should be furnished an appropriate
supplemental statement of the case and be
afforded an opportunity to respond.
Thereafter, the case should be returned to the
Board for appellate review.
The Veteran and his representative have the right to submit
additional evidence and argument on the matter the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs